1. Emond Montgomery Publications
Chapter 5:
The Theory of the Case

2. Theory of the Case: What It Is and Why You Need One
Emond Montgomery Publications
Theory of the Case: What It Is and Why You Need One
Your theory of the case: a view of the facts and law that can justify a favorable decision for your client
Include all the facts of the case that are not in dispute and your version of facts that are in dispute
Facts must constitute a valid cause of action or a valid defence
Your theory of the case must apply the relevant law to the facts of your case

3. 6 Steps to Develop Your Theory of the Case
Emond Montgomery Publications
6 Steps to Develop Your Theory of the Case
Gather the Facts: objective facts are the most valuable
Identify the Legal Issues: determine the area of law involved
Find the Relevant Law: substantive law defines the elements of a civil cause of action or the elements of a criminal offence as well as any available defences
Put Relevant Facts into Evidence: what evidence is required to prove each fact? How will evidence be produced at a trial or hearing?
Assess Your Case: identify strengths and weaknesses of your theory
Assess Your Opponent’s Case: anticipate your opponent’s theory of the case

4. 5 Stages to an Effective Witness Interview
Emond Montgomery Publications
5 Stages to an Effective Witness Interview
Preparing
Review the pleadings in the case
Familiarize yourself with the legal issues
Read over statements from other witnesses or your client
Listening
Show you are paying attention
Paraphrase feelings
Paraphrase/summarize content
Clarify

5. 5 Stages to an Effective Witness Interview (cont’d)
Emond Montgomery Publications
5 Stages to an Effective Witness Interview (cont’d)
Questioning
Obtain more details, background information, explanations
Clarify ambiguities/contradictions in the story
Determine the relevance of aspects of the story
Confirm witness’s qualifications by testing their competence to testify, credibility, and bias
Use different types of questions:
Open-ended questions
Narrow questions
Yes/No questions
Leading questions

6. 5 Stages to an Effective Witness Interview (cont’d)
Emond Montgomery Publications
5 Stages to an Effective Witness Interview (cont’d)
Concluding
Get the witness’s contact information
Thank the witness for participating
Creating a Witness Statement/Note-Taking
Take notes as you conduct the interview
When you are finished, organize the witness’s story and set it out in a witness statement

7. Baldwin Brothers Witness Statements
Emond Montgomery Publications
Baldwin Brothers Witness Statements
Alec Baldwin:
The Feys discussed a kitchen renovation including installing pot lights
Tina Fey was told pot lights are $250 ea. and that the Feys would need only 5
If Tina Fey wanted, more could be installed, but 5 would be enough
$7,500 was agreed to and the $2,500 deposit was paid
The job was finished within a week; the Feys seemed happy
The bill was $8,250: $7,500 + $750 for 3 extra pot lights
Stephen Baldwin:
Alec negotiated a contract with the Feys to renovate their kitchen
When pot lights were installed, Mr Fey asked for 3 extra lights
Money wasn’t discussed; the Feys seemed happy with the work
They asked about the extra $750 on the bill
They said the contract covered “all necessary lights” and wouldn’t pay more than $7,500; we received a cheque for $5,000

8. Theory of the Plaintiff’s Case
Emond Montgomery Publications
Theory of the Plaintiff’s Case
Gather the Facts of the case
After interviews: plaintiff’s advocate prepares a summary of the facts
Identify the Legal Issues Raised by the Facts
Whether the Feys breached the contract
Whether the contract price included 5 pot lights or “all necessary lights”
Research and Find the Relevant Law
Common-law principles of contract law apply
The courts interpret contracts based on the words they use
Each party must persuade the court that his or her interpretation of the contract is the correct one

9. Theory of the Plaintiff’s Case (cont’d)
Emond Montgomery Publications
Theory of the Plaintiff’s Case (cont’d)
How Will You Put the Relevant Facts into Evidence
no documents: the contract was oral
Alec’s testimony
Stephen’s testimony
Assess Your Own Case
Alec will give evidence that the contract provided for 5 pot lights only
Unlikely for a contractor to agree to provide an undefined number of lights
If “all necessary lights” were agreed on, the plaintiff maintains that 5 lights were all that was necessary
Assess Your Opponent’s Case
The defendants could persuade the judge to accept their version of the terms of the contract, and that eight pot lights were necessary to make the kitchen bright

10. Feys’ Witness Statements
Emond Montgomery Publications
Feys’ Witness Statements
Tina’s Statement:
I met with Alec Baldwin about renovating my kitchen
I told him I wanted to replace the existing lighting with pot lights
He said: pot lights cost $250 ea., he’d install the necessary number (5) of lights as part of the contract price; if we needed more they’d install more
I paid the ($2,500); they finished within a week; the work was great
We got a bill for $8,250, instead of $7,500; Mr. Fey dealt with the bill
Tommy’s Statement:
Mrs. Fey negotiated a contract with the Baldwin Brothers
I asked for 3 more pot lights to provide enough light; we didn’t discuss money; the work was great
The bill was $8,250; I asked about the extra $750 and was told it covered 3 extra pot lights
All lighting was included in the original price; I paid $5,000

11. Theory of the Defendants’ Case
Emond Montgomery Publications
Theory of the Defendants’ Case
Gather the Facts of the Case
After interviews: defendants’ advocate prepares a summary of facts
Identify the Legal Issues Raised by the Facts
Whether the defendants are contractually obligated to pay $750 above the original contract price
Whether the contract price included 5 pot lights or “all necessary lights”
Research and Find the Relevant Law
Common-law principles of contract law apply to this case
There is a contract between the parties. This is an issue of interpretation

12. Theory of the Defendants’ Case (cont’d)
Emond Montgomery Publications
Theory of the Defendants’ Case (cont’d)
How Will You Put the Relevant Facts into Evidence
no documents: the contract was oral
Tina’s testimony
Tommy’s testimony
Assess Your Own Case
Tina will give evidence that the contract provided for “all necessary lights”
Alec merely suggested that 5 would be enough
The main concern was the kitchen’s brightness, not the number of lights
Assess Your Opponent’s Case
A judge may accept Alec’s version: it is unlikely that a contractor would agree to provide an undefined number of lights.
If it is decided that the contract was for “all necessary lights,” the judge may not be persuaded that 8 lights were necessary